Time for filing - revisited

["Richard Hill" <rhill@xxxxxxxxx>]

Following up on my previous message regarding time bars, I've given more
thought to the matter and I think that it is important, for legal certainty,
to set clear time bars that distinguish appeals against a policy per se from
appeals against a decision based on a policy.

Presumably people who are concerned about ICANN's policies follow the policy
development process, or are associated with entities that follow the
process, so they can be presumed to be informed when a new policy is
adopted. However, for the sake of legal certainty, ICANN should publish a
clear statement to the effect that a new policy has been approved by the
Board and is available on its web site.  This would be the equivalent of the
publication of law or government rule in the official register.

And obviously people who are affected by a specific decision based on a
policy will be informed of the decision. So in that case the time bar should
start to run from the time of notification of the decision.

It seems to me that a 30-day time bar would not be too stringent in light of
common administrative law practices, but, given the diverse nature of people
affected by ICANN's decisions, I think that a 60-day period should be
allowed for claims filed against a policy per se.

In the interests of simplicity, I think that the time bar should be the same
for claims against a specific decision.

On the basis of my previous comments on time bars, and on the above, I would
propose to replace the current text of article 4, Time for Filing, with the
new text shown below.

Best,
Richard

---------------------

4. Time for Filing

An INDEPENDENT REVIEW is commenced when CLAIMANT files a written statement
of a DISPUTE. A CLAIMANT shall file a written statement of a DISPUTE with
the ICDR no more than 60 days after: 

a) ICANN has announced that a new policy has been approved by the Board and
published on its web site, if the claim is directed against the policy per
se; or

b) the CLAIMANT has been notified of a decision giving rise to the DISPUTE;
or

c) ICANN has failed to take action by a deadline specified in its bylaws or
applicable policies; or

d) if none of the above applies, CLAIMANT becomes aware of the material
effect of an action or inaction giving rise to the DISPUTE; provided,
however, that in this case a statement of a DISPUTE may not be filed more
than twelve (12) months from the date of such action or inaction.

In order for an IRP to be deemed to have been timely filed, all fees must be
paid to the ICDR within three business days (as measured by the ICDR) of the
filing of the request with the ICDR.

An IRP PANEL may exceptionally accept a tardy statement of a DISPUTE if
CLAIMANT proves that it was unable to act within the time for filing despite
having exercised due diligence, provided that a motivated request for
acceptance of a tardy statement of DISPUTE, and the statement of DISPUTE
itself, are filed within 60 days of the day on which CLAIMANT is able to
act.